Bullard v. Southern Ry. Co

• Court: Georgia Supreme Court
• Writing for the Court: COBB, J
• Citation: Bullard v. Southern Ry. Co, 43 S.E. 39, 116 Ga. 644 (Ga. 1902)
• Decision Date: 10 December 1902
• Parties: BULLARD. v. SOUTHERN RY. CO.

43 S.E. 39

116 Ga. 644

BULLARD.

v.SOUTHERN RY. CO.

Supreme Court of Georgia.

Dec. 10. 1902.

RAILROADS—INJURY TO PERSON ON TRACK-CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

1. Where a number of persons habitually, with the knowledge and without the disapproval of a railroad company, use a private passageway for the purpose of crossing the tracks of the company at a given point, the employes of the company in charge of one of its trains, who are aware of this custom, are bound, on a given occasion, to anticipate that persons may be upon the track at this point; and they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence.

2. The rule above stated is more especially applicable where the crossing is at a populous locality within an incorporated city.

3. In view of the allegations of the petition, it was a question for the jury to determinewhether the deceased could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence after the same was existing, and was either apparent, or the circumstances were such as to cause a reasonable person to apprehend its existence.

4. The allegations of the petition made a case for submission to a jury, and the court erred in dismissing the same on demurrer.

(Syllabus by the Court.)

Error from city court of Griffin; E. W. Hammond, Judge.

Action by E. A. Bullard against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Marcus W. Beck and Chas. R. Gwyn, for plaintiff in error.

Battle & Little and Searcy & Boyd, for defendant in error.

COBB, J. Emma A. Bullard brought suit against the Southern Railway Company, making in her petition substantially the following allegations: Petitioner is the mother of Jessie Bullard, who was killed by the running of a passenger train of the defendant within the corporate limits of the city of Griffin, Ga., on the 11th day of September, 1900. Plaintiff was largely dependent upon the labor of the deceased for a support, she contributing a stated sum per month for such support. The deceased was killed by being struck by an engine, and the train to which the engine was attached was being run at a high and negligent rate of speed, to wit, from 35 to 40 miles per hour. The killing occurred within 250 yards of where a street of the city crossed the track east or southeast, and no signal was given of the approach of the train, either by the ringing of a bell or the blowing of the whistle. The engine was being run through a populous and thickly settled section of the city of Griffin at a time when and place where people from the different cotton mills were continually passing from their work in the mills to their homes, and the killing occurred upon a crossing constantly used by the public in crossing the railroad at that point, which facts were known to the employes of the defendant in charge of the train. Notwithstanding these facts, the train was run at such a high and reckless rate of speed as to make it gross negligence on the part of the defendant; and, in addition to this, if the employes of the train had been upon the lookout, they could have seen the deceased, and several companions who were with her, as they entered upon the track, for at least 500 yards, and, having passed the blow post for the crossing, it was the duty of the defendant to cheek the speed of the train, the killing occurring at least 150 yards south or southeast of the blow post, and near the crossing; and had this been done, and the approach of the train been signaled, the deceased would have been warned of the approach of the train in time to have avoided the injury, but, instead of doing this, the employes of the train ran it at a rate of speed, which, in view of the place where the killing occurred, amounted to wantonness, the train being behind time. The deceased was killed at a crossing which was used by the public daily for crossing the railroad at that point. She and her companions believed the train had passed, it being later than the schedule time by about 30 minutes, and they were not expecting a train from that direction; their backs being turned in the direction of the approaching train. The deceased was in the exercise of all due care and caution, and was killed without fault or negligence on her part. She could not have avoided the negligence of the defendant by the use of ordinary care, the train approaching so rapidly without warning, and giving only one or two short whistles of the engine when within a few feet of her, but not in sufficient time for her to get off, or out of the way of the engine. Defendant was negligent and lacking in ordinary care in running its train at such a high rate of speed at the time and place stated, and negligent in not giving any signal of its approach and in not keeping a lookout, or, if the engineer was on the lookout, in not giving sufficient warning of the approach of the train, and also negligent in not slacking its speed at the blow post and continuing to slacken as the train approached the crossing, and in not tolling the bell and blowing the whistle at the blow post, and continuing until the train reached the crossing, and in being behind schedule time. The petition was amended by alleging that at a point about 10 or 15 yards beyond and outside the city limits, near the track, and some 150 yards from where the deceased was killed, was a blow post, at which the whistle of defendant's locomotive should have been blown, and at which the speed of the train should have begun to slacken, but defendant's servants at this blow post neither blew the whistle, nor began to slacken the speed of the train. The petition was further amended by alleging that at the time deceased was killed she and her companions were expecting a north-bound train on the tracks of the Central of Georgia Railroad Company, which train was about due; the tracks of the Central of Georgia Railroad Company being within a few feet of the defendant's track at the point where deceased was killed.

The...